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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
killer whales prey, such as sea lion predation, dams, land-based water pollution, and liquefied natural gas terminals. Some of these commenters felt the proposed rule did not go far enough to address these threats, while others felt NMFS should focus on addressing these threats instead of designating critical habitat. Alternative solutions proposed by commenters included increased hatchery production; salmon habitat management, protection, and restoration; dam removal; and sea lion predation management. Commenters emphasized the need to consider activities outside the critical habitat with downstream impacts that could adversely impact essential features of the critical habitat. One commenter requested that NMFS produce a map of areas outside the critical habitat where activities could trigger section 7
consultation.
Response: NMFS leads and supports a wide range of activities that aim to recover Southern Resident killer whales and their prey, including efforts to address upstream threats highlighted by commenters. As one of many tools to support recovery efforts, designating critical habitat provides additional conservation protections for the whales and their habitat. ESA section 7 requires that Federal agencies ensure their actions are not likely to destroy or adversely modify critical habitat. This requirement applies to actions occurring both within and outside of designated critical habitat areas which can impact the features of the critical habitat. For example, consultation would be required on activities that occur in upstream freshwater locations if those actions may affect essential habitat features in designated critical habitat.
However, as described in the DEA and FEA section 1.3, IEc 2019, 2021, no distance threshold can be predetermined for how far upstream from the critical habitat consultation may occur. Therefore, it is not possible to produce a map of areas where certain activities would trigger section 7
consultation.
Comment 12: Several commenters expressed concern about the impacts of vessel traffic on Southern Resident killer whales. One commenter requested that we consider including additional management measures for vessel traffic in the critical habitat final rule, and another requested that we not exclude the San Francisco Bay shipping lanes.
Additionally, several commenters expressed concern about potential changes to vessel traffic management in response to the designation of critical habitat. They were concerned that the
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critical habitat designation could result in modifications to routing, voyage planning, and navigation restrictions that would adversely impact maritime shipping and towing industries.
Response: The proposed rule identified vessel traffic as one of twelve types of human activities that have the potential to affect the habitat features essential to the conservation of Southern Resident killer whales. The Final Biological Report describes the potential impacts of vessel traffic on, and existing regulations and procedures in place to protect, the whales and their habitat. Vessel traffic has a Federal nexus through the shipping lanes established by the U.S. Coast Guard USCG under the Ports and Waterways Safety Act, and the USCG consults with NMFS to evaluate impacts on whales and their critical habitat for the regulatory codification of Traffic Separation Schemes TSS.
We did not propose to exclude and are not excluding the San Francisco Bay shipping lanes from critical habitat designation, nor do we anticipate that designation will result in changes to the San Francisco Bay TSS. As described in section 2.9 of the DEA and FEA IEc 2019, 2021, based on our experience with section 7 and informal consultations with USCG regarding codification of TSS, NMFS does not anticipate the expanded critical habitat will generate additional conservation efforts for killer whales associated with vessel traffic management beyond the existing need to avoid jeopardy to the whales.
Comment 13: Two commenters stated that scientific research should be included in the economic analysis as an activity that may be affected by the critical habitat designation. One commenter stated that it was unclear if scientific research activities were considered in the economic analysis, and mentioned that basic marine research supported by the National Science Foundation NSF occurs within the proposed critical habitat e.g., NSF Ocean Observatories Initiative. One commenter recommended that we list this category of activity as part of our summary of activities that may adversely modify the critical habitat or be affected by the designation as required by section 4b8 of the ESA.
Response: The effects of certain scientific research activities on Southern Resident killer whale critical habitat and potential for changes in management of those activities following critical habitat expansion were considered within the discussion of other related activities in the DEA

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and are still considered in the FEA IEc 2019, 2021 These activities are directly related to other categories of activities that may affect critical habitat and are, therefore, grouped within those activities instead of as a separate category of activity. For example, seismic-based research is discussed in section 2.12 Geologic Surveys Including Seismic Surveys, and research related to renewable energy development is discussed in section 2.6.
Alternative Energy Development.
Fisheries-related scientific research is included under the category of Fisheries in section 2.3. Other types of scientific research were not identified as posing a specific threat to the essential features of Southern Resident killer whale critical habitat, but future consultations on these activities will need to include an analysis of potential effects on critical habitat. In all cases, NMFS has not identified any conservation efforts that will change management of any scientific research activity following the critical habitat expansion. The DEA and FEA do consider the administrative costs to NMFS, the action agency, and third parties relative to this activity associated with future section 7
consultations. These costs are reported in Exhibit 39 in the categories of Fisheries for fisheries-related research, Renewable Energy Development for wind and wave energy research, Seismic Surveying for seismic research, and Other for other types of research.
Application of ESA Section 4b2
Economic Impacts Comment 14: A representative from the USACE Sacramento District commented that consultations in the Sacramento District will need to consider the effects of their permitted activities on Southern Resident killer whale critical habitat, and thus those activities may be affected by the critical habitat expansion. Additionally, costs associated with future section 7
consultations will be incurred by the District.
Response: We thank the commenter for pointing out the oversight in the DEAs exclusion of the Sacramento District from the list of USACE Districts that manage and conduct activities potentially affected by the expansion of critical habitat for Southern Resident killer whales. We agree that because the range of the prey species, which is an essential feature of Southern Resident killer whale critical habitat, extends into the Sacramento Districts area of authority, activities in that district may be affected. Consistent with the
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